In the Matter of the Disciplinary Proceedings
Against Neil Noesen, RPH

State of Wisconsin: Before the Pharmacy
Examining Board

Final Decision and Order LS0310091PHM

13 April, 2005

The State of Wisconsin, Pharmacy Examining Board,
having considered the above-captioned matter and
having reviewed the record and the Proposed Decision
of the Administrative Law Judge, makes the
following:

Order

NOW, THEREFORE, it is hereby ordered that the
Proposed Decision annexed hereto, filed by the
Administrative Law Judge, shall be and hereby is
made and ordered the Final Decision of the State of
Wisconsin, Pharmacy Examining Board.

The rights of a party aggrieved by this Decision
to petition the department for rehearing and the
petition for judicial review are set forth on the
attached "Notice of Appeal Information."

Dated this 13th day of April, 2005.

Michael BettigaBoard MemberPharmacy Examining Board

STATE OF WISCONSIN

BEFORE THE PHARMACY EXAMINING BOARD

IN THE MATTER OF DISCIPLINARY PROCEEDINGS
AGAINST NEIL T. NOESEN, RPH, RESPONDENT.

PROPOSED FINAL DECISION AND ORDER LS0310091PHM

Division of Enforcement Case File No. 01 PHM 080

PARTIES

The parties to this action for the purposes of
Wis. Stat. sec. 227.53 are:

PROCEDURAL HISTORY

A hearing in the above-captioned matter was held
on October 11 and 12, 2004, before Administrative
Law Judge Colleen M. Baird. The Division of
Enforcement appeared by Attorney John R. Zweig. The
Respondent, Neil T. Noesen, R.Ph., appeared in
person and by his attorney Krystal Williams-Obey.
Based on the entire record in this case, the
undersigned Administrative Law Judge recommends that
the Pharmacy Examining Board adopt as its final
decision and order in this matter, the following
Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1. Neil T. Noesen,
R.Ph., (D.O.B. 03/01/1974) is duly licensed and
currently registered to practice pharmacy in the
state of Wisconsin (license #13021). This license
was first granted on 06/25/1999.

3. At all times
relevant to this action, Respondent was operating as
a sole proprietor contracting his services through
an employment agency, RPh On the Go USA, Inc.,
(hereinafter referred to as "On the Go"), a company
which hires licensed registered pharmacists as
independent contractors for temporary placements.

4. On June 5, 2002,
the Respondent entered into a written independent
contractor agreement with On the Go, which provided
that Respondent shall therefore furnish to customers
of the employment agency, "all services generally
performed by a registered pharmacist in the
customary manner and extent ordinarily performed at
pharmacies, all of which shall be performed in a
professionally competent manner." The agreement
stated that its' terms constituted the entire
understanding between the parties, which could not
be altered or amended except by a writing signed by
the parties.

5. Approximately one
month after entering into the agreement, Respondent
prepared a letter, dated July 2, 2002, addressed to
On the Goand the K-Mart Pharmacy-Rhinelander and
K-Mart Pharmacy-Menomonie, which stated that he had
a conscientious objection "to participating in the
work of contraception."

6. Respondent stated in his letter that he
specifically wished to be excused from the following
actions:

(1) Sale of or counsel for drug therapy or physical
barriers, e.g.; condoms, spermicidal creams, etc.,
that render the act of sexual intercourse sterile,
any drug therapy related to a sterilization
procedure of the male or female sexual organs.

(2) A procedure involving a drug or device that may
prevent the implantation of a fertilized human ovum,
This includes, but is not limited to, drugs which
are prescribed as contraceptives or "emergency
contraceptives" or drugs which have
post-fertilization effects, regardless of the
primary indication, in menopausal patients.

(3) An abortion,
as defined in Wisconsin State Statutes 253.10(2)(a).

(4) An experiment
or medical procedure involving any of the following:

(a) The
destruction of a human embryo;

(b) A human
embryo or unborn child, at any stage of development,
in which the experiment or procedure is not related
to the beneficial treatment of the human embryo or
unborn child.

(5) A procedure, including a transplant procedure
that uses fetal tissue or organs other than fetal
tissues or organs from a stillbirth, spontaneous
abortion or miscarriage.

(6) The withholding or withdrawal of nutrition or
hydration, unless the administration of nutrition or
hydration is medically contraindicated.

(7) An act that causes or assists in causing the
death of an individual, such as by assisted
suicide."

8. Respondent also
stated in his letter that he would follow a certain
protocol for informing the staff of his
conscientious objection and for handling situations
when he would exercise his objection:

"When confronted with an objectionable situation,
which most likely will be a refill or new
prescription for an oral contraceptive, I understand
the necessity of responding in a professional manner
with the patient(s), medical staff and pharmacy
staff. I will immediately notify the patient
of my conscientious objection and offer to call the
prescriber or give the original prescription to the
patient if it has not yet been filled. In the event
that the prescriber is temporarily unavailable, I
will contact a nurse or other staff that is working
with the prescriber. If the nurse or other staff is
unavailable, I will inform the patient that I was
unable to contact the prescriber or the prescriber's
nurse. If the patient has not filled the
prescription, I will offer to give the original
unfilled prescription back to the patient."

9. Respondent
e-mailed his July 2, 2002, letter to John Scott, a
representative of On the Go,but he did not send a
copy of the letter to the K-Mart Pharmacies in
Menomonie or Rhinelander.

10. Respondent did
not ask Mr. Scott to forward his letter to the
pharmacies or the managing pharmacists where he
would be assigned to work.

11. Respondent and
Mr. Scott did not sign a writing amending the terms
of Respondent's independent contractor agreement.

12. Beginning on or
about July 3, 2002, Respondent was assigned by On
the Go to work at the K-Mart Pharmacy in Menomonie,
Wisconsin.

13. Prior to his
placement, Mr. Scott had communicated with Randall
Smith, the K-Mart Pharmacy District Manager, and
told him that Respondent would not dispense
contraceptives. Mr. Smith was never given a copy of
Respondent's letter dated July 2, 2002.

14. Respondent
talked to Ken Jordanby, the managing pharmacist at
the Menomonie pharmacy, and told him that he would
not fill or dispense contraceptives on the basis of
his conscientious objection. Mr. Jordanby was never
given a copy of Respondent's letter dated July 2,
2002.

15. Respondent did
not inform Mr. Jordanby or Mr. Smith that he would
not transfer a prescription (e.g., for
contraception) which he had declined to fill or
dispense.

16. Based upon the
information that Respondent disclosed about the
extent of his conscientious objection, an
arrangement was put in place by Mr. Jordanby for
handling any contraceptive prescriptions that need
to be filled and dispensed while Respondent was on
duty.

17. The arrangement
consisted of a working agreement that if a patient
presented a prescription for contraceptives, a) the
pharmacy technician would prepare the label, and b)
Mr. Jordanby would be called to come in and perform
the filling and dispensing of the medication.

18. Respondent did
not inform the managing pharmacist or the employing
pharmacist that he would not perform the transfer of
a prescription based upon his conscientious
objection.

19. The standard of
care ordinarily exercised by a pharmacist is to
inform the managing pharmacist or the employing
pharmacy with specificity of those activities that
the pharmacist will not perform at the pharmacy
based upon his or her conscientious objection.

20. Because it was
presumed that Respondent would transfer a
prescription if requested to do so, the arrangement
did not provide for handling a request for a
transfer of a prescription which the Respondent
declined to fill or dispense.

21. Respondent was
the only pharmacist on duty at the K-Mart
Pharmacy-Menomonie during the weekend of July 6 and
7, 2002. On Saturday, July 6, 2002, the patient,
referred to hereinafter as "AR", went to the K-Mart
Pharmacy and requested a refill of her Loestrin FE
1/20 prescription. AR's prescription had been
previously filled at the pharmacy and was on file
there.

22. Loestrin FE 1/20
is a medication used to prevent pregnancy or to
regulate the menstrual cycle. It is a combination of
an estrogen hormone (ethinyl estradiol) and a
progestin hormone (norethindrone acetate), which
prevents pregnancy by blocking ovulation, and
thickens the cervical mucus and changes the
endometrial lining, thereby reducing the likelihood
of sperm entry and implantation. Loestrin FE 1/20 is
also used to adjust hormone levels that may be
contributing to irregular menstrual cycles or acne.

23. AR was using
Loestrin FE 1/20 primarily for contraception
purposes, as she did not want to become pregnant.
She had been initially prescribed Ortho-Cyclen, a
similar contraceptive medication, when she was 16
years old for the purpose of regulating her
menstrual cycle.

24. AR had taken the
last of the 28 doses of her previous prescription on
July 6, 2002, and was to start the first dose of the
refill the next day.

25. When AR appeared
at the K-Mart Pharmacy on July 6, 2002, requesting
the refill of her prescription, Respondent asked
whether she intended to use the medication for
contraception.

26. When AR
indicated that she was using the prescription for
contraception, Respondent stated that he would not
refill her prescription because he had a
conscientious religious objection to contraceptives.

27. After inquiring
whether AR was using the medication for
contraception, Respondent did not ask her any
further questions and stopped providing any
professional services to her.

28. When AR asked
Respondent where she could go to have her
prescription refilled, Respondent stated that he
would not tell her because he did not want to be a
part in her receiving the contraceptives.

29. After Respondent
refused to dispense the patient's contraceptive
prescription, she went to a nearby Wal-Mart pharmacy
to see if they could refill it. The pharmacist at
Wal-Mart informed AR that they were willing to
dispense the refill of her prescription medication
and they would call the K-Mart pharmacy to have the
prescription order for refills transferred to their
pharmacy.

30. The pharmacist
at Wal-Mart telephoned Respondent and requested him
to provide the necessary information to transfer
AR's prescription. Respondent refused to provide the
information necessary for the transfer.

31. A transfer of a
prescription can only be made from pharmacist to
pharmacist. (Wis. Admin. Code Phar 7.05(3)) The
pharmacist receiving the transfer must be given the
name of the pharmacist making the transfer, the
phone number of the pharmacy, the name of the
patient, the name of the physician, the original
date of the prescription, the first refill, the
first date of refill, the last refill, the original
number of refills and the number of refills
remaining.

32. Respondent
objected to transferring the prescription for
contraceptives to another pharmacist on the basis
that it would induce another to do a morally wrong
or sinful act pursuant to the doctrines of the Roman
Catholic Church.

33. The Wal-Mart
pharmacist told AR that Respondent had refused to
provide the information necessary to transfer the
refill and she could not refill the prescription.

34. AR went home and
called the K-Mart store and spoke to Debi Wolter,
the assistant store manager. Ms. Wolter told AR that
K-Mart had been having problems the whole day
because women could not get their prescriptions
filled.

35. Ms. Wolter asked
AR if she could wait until Monday when the regular
pharmacist came in. AR told Ms. Wolter that she
could not wait because she was supposed to start her
new cycle of medication on Sunday.

36. Ms. Wolter
called AR back later and told her that Mr. Jordanby
would be coming in on Sunday and would refill her
prescription then.

37. Mr. Jordanby was
not in the Menomonie area on Sunday, because he had
agreed to drive a float for his daughter in a
Chamber of Commerce parade. He did not return until
late Sunday night.

38. When AR called
the store on Sunday morning, she spoke to Ms. Wolter
who told her that the prescription still had not
been refilled. While AR was on the line with Ms.
Wolter, she overheard her say to Respondent that
"Ken [Jordanby] had said he [Respondent] either
needed to fill the prescription or release the
information so it could be done."

39. After she hung
up the phone, AR become very irritated and
frustrated and decided to go to the police station
for assistance. Two police officers accompanied the
patient to the K-Mart pharmacy, although they were
not sure that it was a matter that they could
resolve.

40. While AR and the
police officers were at the K-Mart pharmacy, Ms.
Wolter again called Mr. Jordanby and this time gave
the phone to the patient to talk directly with him.
Mr. Jordanby apologized to AR and again asked her if
she would wait until Monday for the refill because
there was no one there who could handle the refill.

41. Mr. Jordanby
then counseled AR concerning what she could do since
she would be starting her medication cycle late. He
recommended that she come in early Monday morning,
take her Sunday night dose on Monday morning and
then take her Monday dose as usual that evening.

42. Mr. Jordanby
also suggested that AR use a back up form of
contraception for the entire month. AR had received
the same advice from her physician regarding what to
do if she missed one dose of her contraceptive
medication.

43. On Monday, July
8, AR went to the K-Mart pharmacy and Mr. Jordanby
dispensed the medication to her. She took the first
two doses that day.

44. The
effectiveness of AR's oral contraceptive medication
was decreased as result of her inability to take the
first tablet of her next cycle until the second day
of the cycle.

45. The risk of
pregnancy to AR was increased based on the number of
doses of the contraceptive which she missed due to
her inability to obtain her medication.

46. Respondent did
not ask AR any questions about her medical condition
and did not know whether she had a medical condition
that would cause harm to her if she became pregnant.

47. Respondent did
not ask AR when she had taken the last dose of her
previous prescription or when she was to take the
first dose of the refill prescription. He had no
knowledge of how many doses she would have missed
because of his refusal to transfer her prescription.

48. Respondent did
not follow the protocol that he proposed in his July
2, 2002 letter, such as contacting AR's prescriber,
the prescriber's nurse, or other staff working with
the prescriber.

49. Respondent did
not assess the risk of harm to AR as a result of his
refusal to transfer her refill prescription or of
his refusal to provide her information about her
options to obtain her prescribed medication.

50. The fear of
unwanted pregnancy could harm AR, or another woman,
physically or emotionally.

51. An unwanted
pregnancy could harm AR, or another woman,
physically or emotionally.

52. The standard of
care ordinarily exercised by a pharmacist requires a
pharmacist to dispense medication to a patient when
presented with a valid prescription order, unless
the pharmacist in his professional opinion believes
that the prescription has the potential for causing
harm to the patient.

53. There was no
evidence adduced at hearing that refilling the
prescription would harm AR.

54. The standard of
care ordinarily exercised by a pharmacist requires
that a pharmacist who exercises a conscientious
objection to the dispensing of a prescription must
ensure that there is an alternative mechanism for
the patient to receive his or her medication,
including informing the patient of their options to
obtain their prescription.

55. Respondent did
not ensure that there was an alternative mechanism
in place so that AR could receive her medication.

CONCLUSIONS OF LAW

1. The Pharmacy
Examining Board has jurisdiction over this matter
pursuant to Wis. Stat. Â§ 450.10.

2. As set forth in
the Findings of Fact above, by failing to clearly
inform the managing pharmacist that based upon his
conscientious objection Respondent would not
transfer a prescription for oral contraceptives,
Respondent has engaged in practice which constitutes
a danger to the health, welfare, or safety of a
patient and has practiced in a manner which
substantially departs from the standard of care
ordinarily exercised by a pharmacist and which
harmed or could have harmed a patient, in violation
of Wis. Adm. Code Â§ Phar 10.03(2).

3. As set forth in
the Findings of Fact above, by failing to provide
information to the patient AR regarding her options
for obtaining a refill of her prescription which he
refused to dispense or transfer, Respondent has
engaged in practice which constitutes a danger to
the health, welfare, or safety of a patient and has
practiced in a manner which substantially departs
from the standard of care ordinarily exercised by a
pharmacist and which harmed or could have harmed a
patient, in violation of Wis. Adm. Code Â§ Phar
10.03(2).

ORDER

NOW, THEREFORE,
IT IS HEREBY ORDERED that

1. Respondent, Neil
T. Noesen, R.Ph., is hereby REPRIMANDED.

2. Respondent's
license is hereby LIMITED as follows:

a. Prior to providing
pharmacy services at any pharmacy, Respondent shall
prepare a written notification specifying in
detail

i. The pharmacy
practices he will decline to perform as a result of
his conscience; and

ii. The steps he will take to ensure that a
patient's access to medication is not impeded by his
declination(s).

b. The written notification referred to in Â¶2(a)
above shall be provided to a potential pharmacy
employer at least five (5) business days prior to
Respondent commencing practice at the pharmacy.

c. Respondent shall provide a copy of this Final
Decision and Order together with and at the same
time of any provision of written notification
pursuant to Â¶2(a) above.

d. Respondent shall immediately notify the
Department Monitor if he fails to comply with any
provisions of this Order.

e. Respondent shall take a minimum of six (6) credit
hours of continuing education in Ethics for pharmacy
practice, which shall be pre-approved by the Board.
The continuing education shall be completed within
six (6) months of the date of this order.

f. Respondent shall pay the full costs of these
proceedings.

3. Respondent may
petition the Board for modification of limitations
upon his license no earlier than two (2) years from
the date of this order.

OPINION

The central issue in
this case is whether by refusing to transfer the
patient's prescription on the basis of his
conscientious objection, Respondent departed from a
standard of care ordinarily exercised by a
pharmacist and which harmed or could have harmed the
patient.

(2) Violating this chapter or, subject to s.
961.38(4r), ch. 961 or any federal or state statute
or rule which substantially relates to the practice
of the licensee.

. . . .

(6) Engaging in conduct the practice of the licensee
which evidences a lack of knowledge or ability to
apply professional principles or skills.

Wis. Admin. Code Â§ Phar 10.03(2): Unprofessional
conduct. The following, without limitation because
of enumeration, are violations of standards of
professional conduct and constitute unprofessional
conduct in addition to those grounds specified under
s. 450.10 (1), Stats.:

. . . .

(3) Engaging in any pharmacy practice which
constitutes a danger to the health, welfare, or
safety of a patient or public, including but not
limited to, practicing in a manner which
substantially departs from the standard of care
ordinarily exercised by a pharmacist which harmed or
could have harmed a patient.

The allegations set
forth in the complaint are that on July 6 and 7,
2002, Respondent, was working as a relief pharmacist
at a K-Mart Pharmacy in Menomonie, Wisconsin, and
was asked by a patient to dispense an oral
contraceptive prescribed by her physician. The
prescription had been originally filled at the
pharmacy and was on file there. Respondent refused
to dispense the medication on the basis of his
conscientious objection to contraceptives and when
asked to transfer the physician's order for refills
to another pharmacy so the medication could be
dispensed, Respondent refused to provide the
information necessary to transfer the prescription.

The Respondent's conduct in refusing to transfer
the patient's prescription was alleged to be a
violation of Wis. Adm. Code Â§Phar 10.03(2). It was
further alleged that Respondent was required to
ensure under the standards of professional conduct
that, in exercising his conscience, he did not
deprive the patient of her right to receive health
care. Finally, it was alleged that because
Respondent took no steps to ensure there was a way
for the patient to receive her medication once he
knew that she was using it for contraception, his
conduct departed substantially from the standard of
care exercised by a pharmacist, in that the conduct
harmed or could have harmed a patient, contrary to
Wis. Admin. Code Phar Â§10.03(2).

Respondent maintains
that Wis. Admin. Code Phar Â§10.03(2) cannot be
constitutionally applied to force him to engage in
an act that his religious faith considers an
"intrinsic evil." Specifically, Respondent contends
that he was not required to transfer the patient's
prescription to another pharmacy or to provide the
patient with information regarding how she could get
her prescription refilled. Respondent also maintains
that he was not required to provide a written
memorandum detailing his conscientious objections or
to ensure that an alternative mechanism was in place
for the patient to obtain her contraceptives. He
further contends that his acts did not harm the
patient and, therefore, the Department's interest in
protecting the public must yield to Respondent's
right of conscience.

ANALYSIS OF THE EVIDENCE

A) Respondent's Employment Contract

There is no dispute
that Respondent was an independent contractor whose
placement at the K-Mart Pharmacy in Menomonie during
the weekend of July 6-7, 2002 was arranged by RPh On
the Go USA, Inc., ("On The Go"), a company that
specialized in providing temporary relief
pharmacists for pharmacies. The professional
pharmacy services which Respondent contractually
agreed to perform, pursuant to his agreement with On
the Go were described as follows:

[C]ontractor shall therefore furnish to customers of
[On the Go] all services generally performed by a
registered pharmacist in the customary manner and
extent ordinarily performed at pharmacies, all
of which shall be performed in a professionally
competent manner. (Emphasis added) [Ex. 3, page 2])

The term of the agreement was for one (1) year. The
agreement further provided in paragraph 10 as
follows:

This agreement constitutes the entire understanding
between the parties hereto with respect to the
subject matter hereof and may not be altered or
amended except by Agreement in writing signed by the
parties. [Ex. 3, page 2]

Paul Rosowski, the
complainant's expert witness who examined the On the
Go Agreement, testified that in his opinion, a
minimally competent pharmacist who entered into such
an agreement would be agreeing to fill and transfer
prescriptions. [TR. at 263] Mr. Rosowski based his
opinion on the fact that the agreement requires that
he perform allservices generally performed by
a registered pharmacy in a customary manner and
transfer would be something customarily done by a
pharmacist. (Emphasis added) [TR. at 263] Respondent
was under a contractual obligation, therefore, at
the time of his placement at the K-Mart Pharmacy, to
provide those services generally performed by a
pharmacist in a pharmacy, which includes not only
filling, but transferring prescriptions upon
request.

Respondent knew or should have known that it was
very likely that he would be asked to refill or
transfer a prescription for oral contraceptives when
he accepted employment for a weekend duty at K-Mart
Pharmacy. Mr. Rosowski has worked as a pharmacist
for many years, including as relief pharmacist, and
confirmed that most prescriptions for oral
contraceptives are refilled on weekends. He
testified as follows:

I'd say from my
professional experience the weekends tend to be
times when women usually come into the pharmacy
to get their oral contraceptives either filled
or refilled, one for convenience purposes but
probably more importantly that's usually the
time -Sunday is when the first pill out of the
cycle is started. [TR. at 265]

Mr. Rosowski also testified that most prescriptions
for oral contraceptives provide for an original and
11 monthly refills, therefore, one would expect
almost 11 out of 12 requests for oral contraceptives
would be refills. [TR. at 265-7] It is reasonable to
conclude that Respondent should have known that when
he accepted placement at the K-Mart Pharmacy he
would be required to perform pharmacy duties which
included the refills and transfers of prescriptions
if he would not refill them.

There was no indication that Respondent would
refuse to perform all of the services customarily
and ordinarily performed by a registered pharmacist
at a pharmacy. There was no reference whatsoever in
Respondent's Independent Contractor Agreement to
Respondent's conscientious objection to filling,
dispensing or transferring prescriptions for oral
contraceptives. On cross-examination, Respondent
admitted that the Independent Contractor Agreement
had never been amended by the parties to excuse him
from providing those services required under the
agreement. [TR. at 206-7]

It is clear from the record that Respondent failed
to inform On the Go of his conscientious objection
before he entered into the agreement and that he
failed to inform his potential employer of the
pharmacy services that he would not perform in
advance of agreeing to placement as a weekend relief
pharmacist. Thus, it is reasonable to conclude that
Respondent failed to perform the pharmacy services
which he had contractually agreed to perform.

(B) Respondent's July 2, 2002 Letter

On July 2, 2002,
shortly before beginning his employment at the
K-Mart Pharmacy in Menomonie, Respondent e-mailed a
letter to John Scott, an agent for On the Go. In
that letter, Respondent stated that he had a
conscientious objection to contraceptives. While
Respondent addressed his letter to Mr. Scott and the
K-Mart Pharmacy in Menomonie and Rhinelander, he
only sent it to Mr. Scott. When Respondent was asked
why this critical information was sent to Mr. Scott,
he responded as follows:

The intention of that letter was to inform my agent
of my conscientious objection. I had no contact with
K-Mart Pharmacy, with Ken Jordanby. I didn't know
his name, I didn't know who - you know, who he was
or I didn't feel that I had - it was professional of
me to contact him before I started to work there
since the contract is a confidential contract
between On the Go and K-Mart, they do all their
dealing, and I just gave John what I had, cut and
paste from my Children's Hospital objection, and
with Bill AB 63 in there and e-mailed it and that is
what he got. [TR. at 120]

When asked whether
he had an obligation to make certain that the
pharmacies knew the extent of his conscientious
objections and the acts which he would not perform,
Respondent's answered, "That's a good question. Is
that a good answer or not?" [TR. at 158][1]

At another point in
the hearing, Respondent was asked to explain how an
employer could accommodate a pharmacist's refusal to
transfer a prescription if they did not know that
the pharmacist would refuse to do so. Respondent
again replied, "That's a good question. That's my
answer." [TR. at 209] Respondent's July 2, 2002
letter said nothing about his refusal to transfer a
prescription. [TR. at 119-20] When asked on
cross-examination whether he intended to include
transferring a prescription within his letter,
Respondent replied that he did not recall. [TR. at
125] Respondent testified that while he did not
explicitly refer to transferring a prescription, he
thought that it may have been implied when he
used the terms "participate in" in his letter. When
Respondent was asked whether anyone reading his
letter should have understood that his letter, which
did not use the word "transfer," was meant to
include transfer, his response was again, "I don't
recall." [TR. at 125] Regardless of whether
Respondent intended to include transfer of
prescription within the scope of his letter, the
fact remains that he did not give either Mr.
Jordanby or Mr. Smith, the managing pharmacists, a
copy of the letter. Nor did Respondent indicate in
any other manner, including his discussion with Mr.
Jordanby that he objected to transferring a
prescription.

Respondent's letter,
and his disclosure and delivery of it, are critical
components to his ability to properly exercise his
conscientious objection while at the same time
fulfilling his professional duties as a pharmacist.
The evidence shows that Respondent failed to inform
either the employing pharmacy or its managing
pharmacist of the full extent of his conscientious
objection (including the pharmacy duties that
Respondent would not perform.) Randall Smith, the
K-Mart District Managing Pharmacist, testified that
he never received a copy of Respondent's letter. [TR
at 65-6] This is why Mr. Smith did not have an
alternative process for transfer of prescriptions in
place when Respondent was working. Mr. Smith
testified "I just assumed that he would transfer a
prescription and it never occurred to me that he
wouldn't transfer." [TR. at 69.] Mr. Smith employs
approximately 44 pharmacists in 21 pharmacies and
has had only one situation where a pharmacist told
him that she would not dispense a particular
medication (the morning-after pill) and he found a
way to accommodate her limitations by not carrying
that medication in that pharmacy. [TR. at 66]

The local managing
pharmacist, Ken Jordanby, also testified that
Respondent never informed him of the extent of his
conscientious objections. Respondent did not give
Mr. Jordanby a copy of his July 2, 2002 letter. [TR.
at 80] When Respondent spoke to Mr. Jordanby on the
first day that he worked as a relief pharmacist, he
only told him that he would not fill or dispense
contraceptives because of his religious beliefs. [TR
at 82] Respondent admitted that he did not specify
to Mr. Jordanby whether or not he would transfer a
prescription based on his moral objection. [TR. at
156] Mr. Jordanby had no idea, therefore, that
Respondent would refuse to transfer a prescription
to another pharmacy when requested to do so. Mr.
Jordanby further testified that, "he had never
worked with a relief pharmacist who would not
transfer a prescription order for contraceptives."
[TR. at 82] As a result of Respondent's failure to
disclose the extent of his conscientious objection,
Mr. Jordanby did not think it necessary to develop a
contingency plan for the transfer of prescriptions.

An employer's
ability to reasonably accommodate a practitioner's
conscientious objection is logically dependent upon
the disclosure and communication of the objection to
the employer. Respondent sent a letter the day
before he was to start work at the pharmacy; he did
not even address or deliver the letter to either the
employing pharmacy or its managing pharmacist. The
letter he sent did not specifically address the
services customarily and ordinarily provided by a
pharmacist that would be declined. These actions
fall far short of what is required to constitute
effective disclosure and communication of a
conscientious objection.

Furthermore, it
should be noted that Respondent failed to follow the
protocol that he proposed in his July 2, 2002
letter:

I will immediately notify the patient of this
objection and offer to call the prescriber or give
the original prescription to the patient if it has
not yet been filled. In the event that the
prescriber is temporarily unavailable, I will
contact a nurse or other staff that is working with
the prescriber. If a nurse or other staff is
unavailable I will inform the patient that I was
unable to contact the prescriber or the prescriber's
nurse. [Ex. 3 at page 2]

When he asked why he
did not follow his own protocol, Respondent was
unable to offer any explanation. [TR. at 128]
Instead, he admitted that he did not offer to call
the prescriber and he did not do what he wrote to
Mr. Scott in his e-mail that he would do. [TR. at
128]

(C) Professional Standards of Conduct

Both the Respondent
and the Complainant acknowledged that Wisconsin does
not have a statute or rule which deals specifically
with the issue of conscientious objection. This
acknowledgement, however, is by no means
dispositive. The Wisconsin Supreme Court addressed
this issue in Strigenz v. Department of
Regulation, 103 Wis. 2d 281, 307 N.W. 2d 664
(1981), in which a dentist contended that because
the Dentistry Examining Board had not promulgated
rules specifying what conduct was prohibited, he
lacked notice and could not be disciplined for his
conduct. The court, at page 286, stated:

It is not necessary that a written rule declare that
a professional person must practice his or her
profession in a minimally competent manner. It is
not necessary to adopt a standard to declare that a
licensed person must apply his or her professional
skills in a minimally competent manner for that
professional person to be on notice of such
requirement.

The court also
stated at page 287:

Neither Dr. Strigenz nor any other licensed
professional can convincingly argue that he was not
on notice that he had to perform professionally in a
minimally competent manner â€¦.

(1) The terms 'practice that are inimical to the
public health,' 'conduct unbecoming a person
licensed to practice' or 'detrimental to the best
interest of the public,' 'unprofessional conduct'
and 'unprofessional acts' are defined to mean and
include but not be limited to the following, or
aiding and abetting the same: . . .

(g) Any practice or conduct under license or
certificate granted by the examining board which
tends to constitute a danger to the health, welfare,
or safety of the patient or public.

The court stated
this language "provides a standard for revocation
sufficiently definite so that physicians should have
no difficulty providing a standard of care which
meets the requirement of professional conduct." 119
Wis. 2d. 168, at 194.

The pharmacy rule in
Wis. Adm. Code Â§ Phar 10.03(2) is analogous to the
Medical Board rule cited in Gilbert as it
refers in general terms to pharmacy practices which
constitute a danger to the health, welfare, or
safety of a patient or public, including practicing
in a manner which substantially departs from the
standard of care ordinarily exercised by a
pharmacist. The Pharmacy Board is not,
therefore, required to have promulgated specific
rules on a practitioner's exercise of conscientious
objection in order to discipline the Respondent for
violating professional standards of care.

Testimony of Mr. Rosowski

Mr. Rosowski, the
Complainant's expert witness, testified that in his
opinion, Respondent did not satisfy the standard of
care as reflected by a consensus of opinion in the
field. Mr. Rosowski testified that he has been a
registered pharmacist in Wisconsin from 1988 to the
present and has a Master of Science in Pharmacy
Administration. From 1996 to 2001, Mr. Rosowski was
the Director of Pharmacy Internship for the State of
Wisconsin and a clinical associate professor at the
University of Wisconsin-Madison School of Pharmacy.
[TR. at 11] As the Director of Pharmacy Internship
for the UW School of Pharmacy, Mr. Rosowski
co-authored the standards of professional conduct,
which were included in the clinical clerkship
manual. [TR. at 259] Mr. Rosowski has also authored
a number of formal peer-reviewed and informal
papers, made numerous presentations on pharmacy
topics and is highly active in professional service
functions in the field of pharmacy. [Ex. 11]
Finally, Mr. Rosowski has actually worked as a
pharmacist in Wisconsin, including as a relief
pharmacist in community pharmacies, i.e., same role
Respondent was performing at the K-Mart pharmacy in
Menomonie. [TR. at 256]

Mr. Rosowski
testified that a minimally competent pharmacist who
intends to exercise their conscience has a
professional obligation to make certain that the
activities in which they would not engage are
communicated to the managing pharmacist. Mr.
Rosowski indicated that Respondent should not have
assumed that a third party had made those
communications on his behalf. [TR. at 272-3] Mr.
Rosowski referred to the American Pharmacist
Association (hereinafter referred to as "APhA")
report on the subject of conscientious objection to
buttress this opinion. He noted that while the APhA
recognizes that a pharmacist has a right to exercise
their conscience, they also have a duty to the
patient to meet their health care needs and desires.
[TR. at 261] When Mr. Rosowski was asked to give his
opinion on how a pharmacist, practicing to their
minimal levels of competence, can exercise their
conscience while at the same time fulfill the needs
of their patients, he stated as follows:

By setting forth clearly in writing what they would
object to with their employer, the managing
pharmacist that they are working with, so that they
know specifically what activities that they would
not engage in at that pharmacy [TR. at 261]

Mr. Rosowski
testified that unless a pharmacist has indicated
what his conscience prevents him from doing, a
managing pharmacist cannot put a mechanism in place
to ensure that the interests of the patients and the
objecting pharmacist are accommodated. According to
Mr. Rosowski, the failure to effectively disclose
and communicate the extent of a conscientious
objection to an employer substantially departs from
the standard of care ordinarily exercised by a
pharmacist.

Mr. Rosowski also
testified that a minimally competent pharmacist
would have followed the plan he outlined and that
failing to do so violated professional standards of
care. [TR. at 276] In this regard as well,
Respondent's conduct substantially departed from the
standard of care ordinarily exercised by a
pharmacist.

1997-98 APhA Policy Committee Report-
Pharmacist Conscience Clause

Mr. Rosowski
testified that the APhA Policy Committee Report is
the best summary of the standard of care for a
pharmacist, in terms of their professional duties
and obligations, when a pharmacist asserts a
conscientious objection. [TR. at 260] Mr. Rosowski
explained that the APhA's report reflects the
consensus of professional opinion on this subject.
The APhA's report recognizes the need to balance the
rights of the pharmacists as individuals with their
responsibility to serve patients as health care
professionals. The APhA report recommends that
pharmacists be allowed to excuse themselves from
dispensing situations which they find morally
objectionable, but that removal from participation
must be accompanied by responsibility to the patient
and performance of certain professional duties which
accompany that refusal:

Pharmacists choosing to excuse themselves from such
a situation continue to have a responsibility to the
patient-ensuring that the patient will be referred
to another pharmacist or be channeled into another
available health system. Exercising the authority to
excuse themselves from the dispensing process, and
thus avoiding having personal, moral decisions of
others placed upon them, requires the same
consideration of the patient-the patient should not
be required to abide by the pharmacist's personal,
moral decision. Providing alternative mechanisms for
patients in this situation ensures patient access to
drug products, without requiring the pharmacist or
the patient to abide by personal decisions other
than their own. Such policy is necessary to
establish professional processes that support both
patients receiving what they are seeking-as
determined by the personal decision of the patient
and the professional judgment of his or her
physician, and that pharmacists are not required to
participate in activities which they find morally
objectionable. [Ex. 6, pg. 1]

As to the question
of conscience, the report states:

Conscientiousness does not permit one to merely
excuse oneself from a difficult situation. It is
defining a specific situation, and acting in a
manner that accommodates one's personal beliefs
without grossly overstepping the rights of others.
(Emphasis added) [Ex. 6 at pg. 5]

Mr. Rosowski
explained that the pharmacist should set out in
writing to his or her employer or managing
pharmacist specifically what activities the
pharmacist would not engage in at that pharmacy as a
result of his conscientious objection. [TR. at 261]

Code of Ethics for Pharmacists

The Code of Ethics
for Pharmacists is also informative as to the
standard of practice to be considered in this case
and to contextually review the Respondent's conduct.
The Preamble to the Code of Ethics for Pharmacists
states that the principles set forth in the code are
intended to publicly state the role and
responsibilities of pharmacists and to guide
pharmacists in their relationships with patients,
health professionals and society. The first article
of the code describes the relationship between the
patient and the pharmacist as a covenant, which
requires that a pharmacist has moral obligations to
help individuals achieve optimum benefit from their
medications, to be committed to their welfare, and
to maintain their trust.

The second article
states that a pharmacist must promote the good of
the patient in a caring, compassionate and
confidential manner. The first sentence of that
article states that a pharmacist must place the
concern for the well-being of his patients at the
center of professional practice. The code also
states other principles such as the patient's
self-determination, respecting personal and cultural
differences among patients, and avoiding practices,
behavior or work conditions that compromise
dedication to the best interests of patients.

The predominant
theme in the ethical code is that of a
patient-centered professional practice. Mr. Rosowski
as well referred to the principle that a pharmacist
must always keep in mind the patient's desires
first. The patient has to come first. [TR. at 285]
Respondent's conduct in refusing to transfer AR's
prescription or to provide her with information
about how she could obtain her prescription, is
inconsistent with the principles of a
patient-focused practice set forth in the Code of
Ethics for Pharmacists.

Testimony of Dr. Wernow

Dr. Jerome Wernow,
Executive Director, Northwest Center for Bioethics
in Portland, Oregon, testified on behalf of
Respondent. Dr. Wernow has a Bachelor of Science in
Pharmacy and advanced degrees in religious studies
and philosophy. He also served as adjunct faculty at
Western Seminary, a Senior Pastor in the state of
Washington and a foreign missionary. In the field of
pharmacy, Dr. Wernow held various positions over the
years, beginning in 1979, as a director of pharmacy
(1 year), a staff pharmacist (5 years) and a
part-time pharmacy consultant and advisor on
pharmacy policy (1 year).

Dr. Wernow testified
that in his opinion, Respondent practiced due
diligence in good faith within the criteria of the
APhA standards of practice. Dr. Wernow stated the
basis for his opinion as follows:

A: â€¦ that [Respondent] followed when he crafted his
letter and he articulated the contents of his letter
that he submitted to Mr. John Scott, to Mr.
Jordanby, and that there was an arrangement made
that would be within the contours of the APhA's
suggested standard of practice for conscientious
objection, where it said that the pharmacist did
indeed oppose or conscientiously object, they had a
professional responsibility that is tied to that
refusal and under Section E there's a statement that
says he needs to ensure that the patient will be
referred to another pharmacist. By arranging with
Mr. Jordanby referrals in areas where he objected in
dispensing he set up an appropriate standard that
would permit that referral, so there is an
alternative in place. [TR. at 330]

The difficulty with
reconciling Dr. Wernow's opinion with the evidence
in this case is that it assumes that Respondent gave
proper notice of his conscientious objection to the
managing pharmacist and employing pharmacy. As cited
above, Dr. Wernow testified that Respondent
"articulated the contents of his letter that he
submitted to Mr. John Scott, to Mr. Jordanby, and
that there was an arrangement made that would be
within the contours of the APhA." However, the
evidence shows that Respondent did not provide a
copy of his July 2, 2002 letter to Mr. Jordanby, the
managing pharmacist. Nor did Respondent provide a
copy of his letter to Mr. Smith, the district
managing pharmacist, or to the pharmacies in
Menomonie or Rhinelander. He did not even ask Mr.
Scott to forward the letter to anyone. Similarly,
the evidence of record shows that when Respondent
began working at the pharmacy, Respondent did not
inform the managing pharmacist that he would not
transfer a prescription on the basis of his
conscientious objection. Respondent never
articulated the contents of his letter or the extent
of his conscientious objection to his employers;
therefore, Dr. Wernow's opinion is not supported by
the evidence adduced at the hearing.

Dr. Wernow also
based his opinion on a rulemaking responsibility for
the Pharmacy Examining Board that is inconsistent
with the standard set forth in Strigenz.

Q: Are you are referring to the State Board of
Pharmacy's responsibility right now?

A: If they're -if the State Board of Pharmacy is
going to sanction penalties, the pharmacist needs to
know or needs to be at least notified and warned
that if indeed they're going to express a
conscientious objection here, the criteria or the
things, the criteria that they must follow, and so
there needs to be some type of specific criteria
laid down that they'd be holding the pharmacy up
against - the pharmacist up against as well as the
managing pharmacist. [TR. at 336]

Dr. Wernow's opinion
was based on factual and legal assumptions not
supported by the evidence; he contends that proper
notice of his conscientious objection was given by
Respondent and that the Board is required to detail
with specificity all examples of unprofessional
conduct as a prerequisite to imposing discipline.
For these reasons, his testimony was unpersuasive.

The evidence in this
case shows that Respondent fell far short of
satisfying the standard of care as articulated by
Mr. Rosowski and as reflected in the APhA report and
Pharmacist Code of Ethics. Respondent failed to
balance his covenantal duties to his patients with
the exercise of his conscience. He did not
adequately and timely disclose and communicate to
the managing pharmacist or pharmacy, the activities
which he would not perform as a result of his
conscience. He did not even follow the protocol or
steps that he proposed in July 2, 2002 letter, which
he said that he would do when confronted with a
situation where he would exercise his conscience.
Respondent did none of the professional duties which
must accompany his refusal to participate in the
dispensing of medication which is lawfully
prescribed by a physician for his or her patient.
Respondent admitted that once he was informed that
the patient was seeking to refill a prescription for
contraceptives, he completely disregarded her as a
patient and did nothing more for her.

A pharmacist is a
professional health care provider who has ethical
duties to their patients. A pharmacist in exercising
their conscientious objection must seek to avoid
results that cause harm or potential harm to their
patients, such as the denial of access to their
prescribed medications and disruptions in the
patient's continuity of care. For all he knew,
Respondent could have suffered severe
life-threatening complications or even possibly died
from the consequences of his actions in denying
access to her prescribed medication. Respondent has
engaged in a pharmacy practice that constitutes a
danger to the health, safety and welfare of the
patient.

(D) Respondent's Failure to Provide Information
to the Patient

In addition to
failing to inform the managing pharmacist or
pharmacy that he would not transfer a prescription
for contraceptives, Respondent violated the
professional standard of care by failing to advise
the patient AR of her options to get her
prescription filled elsewhere. According to Mr.
Rosowski, a pharmacist is required to inform the
patient of her options as to what she can do to get
her prescription filled if he refuses to dispense
the medication. [TR. at 273-4] Mr. Rosowski
testified that upon receiving the call from the
Wal-Mart pharmacy requesting the refill transfer
information, Respondent should have transferred the
prescription to the other pharmacy and allowed the
patient to get the medication she needed. In the
alternative, Respondent could have routed the
patient to an emergency room so that a physician
there could have written a new prescription which
could have been filled at another pharmacy. [TR. at
275]

AR testified that
Respondent did not give her any information or
assistance when she asked how she might get her
prescription filled. Respondent does not deny this.
He testified that he did not tell her anything
because he did not want to facilitate her receiving
birth control. [TR. at 36] Respondent admitted that
the first thing that he did when AR requested a
refill of her prescription was determine whether she
was using the medication as a contraceptive. [TR. at
141] As a result, Respondent did not ask AR when she
had taken the last dose of her previous prescription
or what day she was to begin taking the first dose
of the refill prescription she was seeking. [TR. at
35-6]. Respondent also failed to ask AR whether she
had a medical condition, for which a pregnancy
-especially an unintended pregnancy - could
adversely affect her physical or emotional health.
In short, Respondent failed to take any steps
whatsoever to assess the risk of harm to AR caused
by his refusal to transfer her prescription or to
provide her with information as to how to get her
prescription filled. Once Respondent knew that the
patient was using the medication for contraception,
he refused to do anything further to assist her in
any way. By his refusal, he substantially departed
from the standard of care ordinarily exercised by
pharmacists.

(E) Harm or Potential Harm to a Patient

Respondent argues
that this disciplinary action should be dismissed
because there was no actual harm or potential harm
to the patient. However, the applicable law in this
case does not require a finding of actual harm. The
definition of unprofessional conduct as set forth in
Wis. Adm. Code Â§ Phar 10.03(2), states "any pharmacy
practice which constitutes a danger to the health,
welfare, or safety of a patient or public, including
but not limited to, practicing in a manner which
substantially departs from the standard of care
ordinarily exercised by a pharmacist which harmed
or could have harmed a patient." The prohibition
of conduct which has a potential to cause harm is
consistent with the purpose of professional
licensing and the disciplining of licensed
professionals to protect the public. See Krahenbuhl v. Wisconsin Dentistry Examining Bd.,
2004 WI App. 147, 30, 681 N.W. 2d 891:

â€¦ [A] state action against a licensee is not
principally about damages, penalties or forfeitures
but rather is about the protection of the public.
See also Doersching v. Funeral Dirs. & Embalmers
Examining Bd.,138 Wis. 2d 312, 328, 405
N.W. 2d 781 (Ct. App. 1987) ("The state's purpose in
licensing professionals is to protect its citizens.
Strigenz, 103 Wis. 2d at 286, 307 N.W. 2d at
667.

Evidence was
presented that the increased risk of a pregnancy to
AR resulting from her inability to obtain her
contraceptive medication harmed or could have harmed
her. Women still die during childbirth. Every
pregnancy has the potential for morbidity or
mortality. [TR. at 304] There is a risk of pregnancy
even while taking oral contraceptives exactly as
directed, and an increased risk when it is not taken
as directed. [Exhibit 2, page 3]

Respondent also
argues that any temporary frustration or anxiety
experienced by the patient as a result of her
inability to obtain her contraceptive medication
cannot be the basis for a finding of harm.
Respondent relies on the opinion of Dr. Ralph Miech,
a retired professor of pharmacology and emergency
medicine. Dr. Miech's testimony was focused on the
pharmacodynamics of oral contraceptives; how the
drug acts in the body. [TR. at 311-312] In Dr.
Miech's opinion, Respondent's refusal to transfer
AR's prescription, which resulted in her missing the
first dose of Loestrin, was not a danger to AR's
health. Dr. Miech based his opinion on the fact that
AR had no difficulty taking a double dose to make up
for the missed dose and she was able to take the
remaining doses in the cycle. [TR. at 313-314]. Dr.
Miech's opinion was, therefore, based upon the
outcome in this case; that because AR did not
experience any side effects from the double dose and
did not become pregnant. [TR. at 316].

The flaw in Dr.
Miech's opinion is that the risk of harm, for
purposes of the applicable pharmacy rule, Wis. Adm.
Code Phar Â§10.03(2), is not determined by whether
the patient was actually harmed, but whether
there was a potential that a patient could
have been harmed. In addition, the rule does not
limit the potential harm to a specific patient; it
could include any patient that could have
been harmed. Nor does the rule distinguish between
physical and emotional harm. Dr. Miech admitted that
he did not take into consideration the potential
emotional harm to a patient from an unintended
pregnancy. [TR. at 319] The fact that there was no
actual physical harm to AR does not mean that
Respondent's conduct was acceptable under the
pharmacy rule and, therefore, Dr. Miech's opinion
has little relevance to the violation in this case.

Whether or not AR
actually became pregnant as a result of missing the
first dose of her prescribed medication does not
settle the issue of harm or potential for harm.
Pregnancy itself can create health risks to the
mother. The possibility of ovulation and pregnancy
increases with each missed dose of the medication in
question. [Ex. 2] Mr. Jordanby advised AR to use a
back-up method of contraception for the rest of her
menstrual cycle. [TR. at 90] At the time of the
hearing, AR testified that she was pregnant and that
her pregnancy had resulted from missing just one
dose of her contraceptive medication. [TR. at 58]
From the prospective of a patient desiring
contraceptive protection, the Respondent's conduct
created harm or the risk of harm.

(F) Respondent's Motion to Dismiss

Prior to the hearing of this matter, Respondent
requested that the Complaint be dismissed on the
basis that the rules of professional conduct, as
applied to the facts of this case,
unconstitutionally interfere with Respondent's right
to the Free Exercise of Religion protected by the
First Amendment to the United States Constitution
and Article 1, Sec. 18 of the Wisconsin
Constitution. While constitutional issues in general
cannot be litigated in this forum (Omernick v.
Department of Natural Resources, 100 Wis. 2d
234, 248, 301 N.W. 2d 437 (1981)), this tribunal has
determined for the reasons set forth below that
Respondent's contentions do not reach a
constitutional level. Based upon a review of the
record, including the arguments filed by the parties
subsequent to the hearing, Respondent's motion to
dismiss is without merit and is denied. Respondent's
arguments on this issue are nonetheless of record
for the purposes of appeal.

The Wisconsin
Pharmacy Examining Board has never held that a
pharmacist is not entitled to exercise his or her
conscience in the practice of his or her profession,
nor is Respondent's exercise of conscience the basis
for prosecution of this case. Rather, this case is
about following professional standards in the
exercise of one's conscience. This, Respondent
failed to do. The discipline recommended in this
Order is a consequence of Respondent's failure to
act as a professional. The Respondent is not being
sanctioned for exercising his conscience. Rather, he
is being held accountable, as would any other
registered pharmacist, for engaging in a practice
that departed from the standards of care that govern
his profession. The United States Supreme Court in
Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872; 110
S.Ct. 1595, 108 L.Ed. 2d 876, has held that the free
exercise of religion clause would not relieve an
individual of the obligation to comply with a law
which incidentally forbids the performance of act
that the individual's religious belief required, so
long as the law was not specifically directed to
religious practice and was otherwise constitutional.

The Court said:

We have never held that an individual's religious
beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free
to regulate. On the contrary, the record of more
than a century of our free exercise jurisprudence
contradicts that proposition.

The United States Supreme Court has "never held that
an individual's religious beliefs excuse him from
compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate."

Nor has the United
States Supreme Court held "that when otherwise
prohibited conduct is accompanied by religious
convictions, not only the convictions but the
conduct itself must be free from governmental
regulation." Lange v. Lange, 175 Wis. 2d 373,
383-84, 502 N.W. 2d 143 (Ct. App. 1993) (citations
omitted).

It has not been
shown by the evidence presented in this case that
Respondent's ability to freely exercise his
religious beliefs will be unduly burdened if he is
required to follow generally recognized professional
standards of care in exercising his conscientious
objection to birth control.

Nor has Respondent
successfully demonstrated that he is entitled to a
claim under the Wisconsin Constitution. Respondent
has failed to show that application of Wis. Admin.
Code Â§ Phar 10.03(2) unduly "burdens" him and, thus,
his arguments fail. See e.g., State v. Miller,
202 Wis. 2d 56, 549 N.W. 235 (1996).

The state's
compelling interest in making certain that health
care professionals practice in a competent manner is
well established:

This court has acknowledged that the purpose of
licensing statutes is not to benefit those persons
licensed to practice under the statutes, but rather
to protect the public by the requirement of a
license as a condition precedent to practicing in a
given profession. The granting of a license pursuant
to such a statute has been characterized as a
privilege. Strigenz v. Department of Regulation,
103 Wis. 2d 281, 286, 307 N.W. 2d 664 (1981). Such
statutes are grounded in the state's police power to
protect the public welfare through safeguarding the
life, health, and property of its citizens, quoting State ex rel. Wis. Registration Bd. of
Architects & Professional Engineers v. T.V.
Engineers, 30 Wis. 2d 434, 438-39, 141 N.W. 2d
235 (1966). Occupational licensing requirements
follow a legislative determination that the public's
health and safety require protection from
"incompetent practitioners" Laufenberg v.
Cosmetology Examining Board, 87 Wis. 2d 175,
184, 274 N.W. 2d 618 (1979), citing Watchmaking
Examining Bd.v.Husar, 49 Wis. 2d
at 533. See also, State ex. rel. Green v. Clark,
235 Wis. 628, 631,294 N.W. 25 (1940).

(G) Objectives of Professional Discipline

The recommendation
for discipline in this Order is based upon the
objectives of professional discipline, which include
(1) to promote the rehabilitation of the licensee;
(2) to protect the public; and (3) to deter other
licensees from engaging in similar conduct. State
v. Aldrich, 71 Wis. 2d 206, 209 (1976).
Punishment of the licensee is not an appropriate
consideration. State v. McIntyre. 41 Wis. 2d
481, 485 (1969).

Respondent testified
at hearing that he no longer puts any disclosure of
his conscientious objection in writing to anyone.

Q: So does that mean, Mr. Noesen that you still use
the same definition of participate?

A: I don't use any written stuff anymore. I just - I
was on the phone for an hour with Lance Moran. I was
on the phone for an hour with Steve Mouskou, he's my
agent through Lance Moran's company, and we just
talk it out. It's just a matter of communication.
That was more of a business decision that I put in
writing. That wasn't-I wasn't obligated by any means
to put anything in writing and so - to be consistent
I'm going through Pharmstaff â€¦.

Q: And you communicated to your agent that you will
not transfer a prescription, is that correct?

A: I can't remember for sure.

Q: So, you may be sitting in the same spot later?

A: You know, I can't remember. I can't remember if
I- [TR. at 204]

When asked why he
did not assess the risk to the patient by asking AR
about her medical condition or when she took her
last dose of medication, Respondent testified as
follows:

Q: And what the patient wanted wasn't important to
you, was it?

A: If the patient is desiring something that's
contrary to the moral code, to the natural law, to
the philosophy of pharmacy practice going way back
to the old pharmacy guys like Galen, Plano the
Elder, and all these guys that established pharmacy
practice a long time ago, like Hippocrates said, you
know, don't give a poison to your patient, so we
have to follow these laws of our profession because
they don't change.

Q: But, the point is this, the moral code that you
say you must follow in making determinations for
this patient is the moral code that you choose to
believe?

Respondent's
testimony gave the distinct impression that
satisfying his own personal moral code was his only
concern. Respondent did not even acknowledge that he
had caused or could have caused harm to a patient.
In fact, Respondent argued that others were to blame
for the problem - the patient, Ken Jordanby, the
Wal-Mart Pharmacist and the Pharmacy Examining
Board. Rather than accepting and acknowledging his
responsibility as a professional pharmacist,
Respondent would have the Board conclude that it was
the obligation of others to interpret the extent of
his conscientious objections and to ensure that an
alternate arrangement was in place so that patients
would receive their health care.

Respondent clearly
needs training in the ethics of his profession. This
Order recommends a minimum of six hours of
continuing education in ethics in the profession of
pharmacy. In addition, the Order imposes limitations
that will guide Respondent in the responsible
exercise of his conscience in accord with the
standard of care reflected in the APhA report and
Pharmacist Code of Ethics. Respondent is allowed to
work as a pharmacist and to exercise his beliefs
about contraception; he is merely prevented from
doing so in a manner where he deprives patients of
their legal health care rights by failing to inform
his practice setting of the acts he will not
perform. The imposition of the proposed discipline,
training and practice guidelines strike the
appropriate balance between the interests of an
objecting pharmacist and the need for protection of
the public in this action.

The goal of
deterrence is likewise met by the terms of this
Order. Respondent as a condition of his licensure is
ordered to follow accepted guidelines for the
professional exercise of his conscience, and he will
be required to obtain additional training. These
measures should be sufficient to deter him from
confusion of his professional responsibilities in
future. Nor is it unreasonable to hope that the
Board's recognition of guidelines in its Order will
be sufficient for the deterrence of others in
similar situations.

(H) Costs of the Proceeding

The assessment of
costs against a disciplined professional is
authorized by sec. 440.22(2), Wis. Stats. and sec.
RL 2.18, Wis. Admin. Code. The Pharmacy Examining
Board has the discretion to impose all, some, or
none of the costs of the proceeding. Wis. Stats. Â§
440.22 (2). The recommendation that the full costs
of the proceeding be assessed is based on two
factors. First, theDepartment of Regulation
and Licensing is a "program revenue" agency, which
means that the costs of its operations are funded by
the revenue received from its licensees. Second,
licensing fees are calculated based upon costs
attributable to the regulation of each of the
licensed professions and are proportionate to those
costs. This budget structure means that the costs of
prosecuting cases for a particular licensed
profession will be borne by the licensed members of
that profession. It is fundamentally unfair to
impose the costs of prosecuting a few members of the
profession on the vast majority of the licensees who
have not engaged in misconduct. The cost of this
proceeding should not be borne by or passed along to
the other members of the profession who abide by the
rules of practice and follow the law. Since the
Respondent is found to have engaged in
unprofessional conduct, he should be held
responsible for the full costs of this proceeding.

Based upon the
record herein, the Administrative Law Judge
recommends that the Wisconsin Pharmacy Examining
Board adopt as its final decision in this matter,
the proposed Findings of Fact, Conclusions of Law
and Order as set forth herein. The rights of a party
aggrieved by this Decision to petition the Board for
a rehearing and to petition for judicial review are
set forth in the attached "Notice of Appeal"
information.

Dated this 28th
day of February, 2005

Colleen M. BairdAdministrative Law Judge

[1]
Unfortunately, this rhetorical response was
typical of Respondent's demeanor when questioned
as to critical points during the hearing. The
following excerpt of Respondent's testimony is
illustrative:

Q: All right. So
Mr. Scott, your agent, got this letter. Exhibit
4, and how was he supposed to know from reading
this letter that you wouldn't transfer a
prescription?

A: Well, perhaps,
Mr. Zweig, you could tell me what you would
think if I read you a piece of this?

A: Well, Mr.
Noesen, we've already established that you
didn't put anywhere in the letter that you
wouldn't transfer a prescription, correct?

A: If you'd allow
me to read a part of this.

Q: Well, please,
answer that. Then I'll allow you.

A: I think that I
have already answered that question.

Q: And the answer
is you did not, correct?

A: I did answer
that question.

Q: Your answer to
the question was that you did not include
specifically in this letter that you would not
transfer a prescription.

A: I believe that
I've answered that question already.

Q: And what was
your answer?

A: You can ask
the court reporter.

Q: You could save
us a lot of time if you'd tell us, sir. Is there
a reason you don't want to tell us what your
answer is?

A: I think this
is harassment if you keep asking me the same
question over and over.

Q: Is that an
objection, Mr. Noesen?

Q: Rather than
waste time, let's ---I'll ask you a different
question. What language in Exhibit 4 do you
believe makes it clear to someone reading
Exhibit 4 that you will not transfer a
prescription?

A: Mr. Zweig, you
tell me what you think when I read this.

Q: No, you don't
get to ask me the questions, Mr. Noesen.

A: Okay.

Q: Please read
from that letter the portion of the letter that
you believe informs a reader that you will not
transfer a prescription.